BERSIH 2.0 is concerned about the impartiality and the independence of the judiciary in Malaysia. The judiciary plays a very important role in safeguarding the freedom and fairness of the electoral process because it is the bulwark against any violation of the constitutional right for a free and fair election. However, the manner in which the Court of Appeal conducted the appeal of Dato’ Seri Anwar Ibrahim’s sodomy charges raises serious questions yet again as to the independence of the judiciary in Malaysia. Many Human Rights Organisations and International Observers, including the Human Rights Watch, the International Commission of Jurists, and the International Federation of Human Rights have expressed similar concerns.

Further, the fact that the appeal was brought forward from the original dates of 7 to 10 April 2014 to 6 to 7 March, just prior to the Kajang state constituency by-election, coupled with the haste in which the appeal was disposed of, casts further doubt as to whether all these were done for a collateral purpose – that is to prevent the democratic process of Anwar Ibrahim contesting in the Kajang state constituency by-election. This is in effect, notwithstanding any miscarriage of justice, a violation of Anwar Ibrahim’s constitutional right to contest in the Kajang state constituency by-election.

Moreover, the disqualification of Anwar Ibrahim was on the basis of a charge for an archaic colonial offence under the Penal Code, which is contrary to international human rights standards, and has no place in this time and age. On that basis, this is also an affront to the democratic right of the voters in the Kajang state constituency because they are being deprived of an opportunity to be represented by a candidate of their choice.

The judiciary has disappointed the people once again as regards safeguarding free and fair elections. This follows a series of bad decisions such as:

1) the refusal to grant leave for application by elected representatives Charles Santiago and Nurul Izzah Anwar, separately, for judicial review of the decision of the Election Commission for refusing to cleanse the tainted electoral rolls.

2) the unjustified striking-off of the claim against the members of the Election Commission for misfeasance of public office by using defective “indelible” ink.

3) the striking-off of many election petitions on questionable grounds.

Wrongdoers will not be held accountable because the judiciary fails to carry out its constitutional oath to preserve, protect and defend the Constitution, independently and impartially. Without an independent and impartial judiciary carrying out its constitutional duty, a free and fair election will remain an illusion.

Ever since Anwar Ibrahim was sacked as Deputy Prime Minister in 1998, the government has continuously misused state institutions especially the police, the Attorney-General’s Chambers and the judiciary to persecute him on what were clearly politically motivated and trumped up charges. Anwar was beaten to within an inch of his life by then Inspector-General of Police Rahim Noor while handcuffed and blindfolded and after a series of sham trials that were universally condemned, he ultimately spent six years in jail.

With Anwar once again poised to challenge and reshape the dynamics of opposition politics by contesting in the Kajang by-election and in all likelihood be appointed as Selangor Menteri Besar, something had to give – and the government once again called upon the services of the AG’s Chambers and judiciary to eliminate Anwar.

Although not expecting a fair trial, the skulduggery and lightning speed involved to bring forward and fully hear the AG’s Chambers appeal against Anwar’s acquittal, having him convicted and sentenced to five years’ imprisonment in order to disqualify him from contesting in the by-election was breathtaking and represented a new abysmal low for the judiciary.

To describe the judiciary as not independent is a serious understatement. In such cases, these judges actively collaborate with the authorities and deliver perverse judgments on cue. It is just a matter of time before our judiciary, deservedly mocked, reaches the farcical level of summary trials currently seen in Egypt in cases against the Muslim Brotherhood.

The Court of Appeal judges involved, Balia Yusof, Aziah Ali and Mohd Zawawi Salleh surely must be remembered as being responsible for one of the worst miscarriages of justice in recent memory. Their names will live in infamy together with other infamous judges like Augustine Paul and Arifin Jaka who similarly perverted the law in order to convict Anwar on false charges.

The hardliners in the government clearly think that the overwhelming misuse of state institutions is the answer even though such actions are preposterously self-defeating. There has been a stream of criticism both inside Malaysia and abroad including from the US, EU, Human Rights Watch, Amnesty International, Inter-Parliamentary Union and numerous other human rights and lawyers’ organisations. Many are ridiculing a legal system that allows for a travesty of justice on this scale to take place, which lacked basic standards of fair trial and even involved Shafee Abdullah, prominent UMNO lawyer and legal adviser to Mahathir Mohamad and Najib Razak, to prosecute Anwar.

But coming down hard on Anwar and many other opposition leaders, members of Parliament, student leaders and dissidents on spurious sedition and peaceful assembly charges among others, makes Najib Razak look more repressive than the modern and democrat leader that his spinners want to portray. It also adds to the perception that Anwar and the opposition are clear victims, despite the fact that Barisan Nasional still enjoys almost half of the electorate’s support.

Given that the judiciary will at some point be called again to adjudicate on significant matters between the government and the opposition including on electoral fraud, gerrymandering and other unlawful practices, fundamental freedoms and transition of government at state or federal level, anything that undermines its independence will cast a long shadow over these processes.

Anwar's verdict comes at a crucial moment in Malaysia's muddled transition from authoritarian rule with nominal democracy and periodic elections to what many still hope, despite the troubling signs, a greater democracy with genuine free and fair elections.

The verdict is not just about Anwar or the opposition’s political ambition. By convicting Anwar in a ludicrous trial that broke every known fair trial standards, it represents the ugly truth of Barisan Nasional, of desperation to hold on to power come what may, regardless of the damage it may do to Malaysia.

It is therefore all the more imperative to reject Anwar's verdict and work towards reclaiming Malaysia's democratic future without Barisan Nasional at the helm. – March 27, 2014

* Eric Paulsen is the Executive Director of Lawyers for Liberty. Follow us on Twitter @lawyers4liberty* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.

Opposition leader Anwar Ibrahim’s sodomy Part-2 appeal at the Federal Court which began Tuesday enters its third day today. Anwar’s battalion of 14-lawyers saw a surprising appearance of Datuk Seri Gopal Sri Ram – a prominent retired federal court judge – as the lead counsel. Anwar claimed it was Gopal Sri Ram who volunteered his legal services in the sodomy case.
In 2008, Mr Anwar was accused of having sex with a male political aide – Mohd Saiful Bukhari Azlan (Saiful). He was cleared by a High Court of the charges in 2012 because of a lack of evidence. However, Anwar was sentenced to five years in jail in March this year after the earlier acquittal was overturned, which many believe was due to political interference to cut short the de-facto opposition leader’s onslaught on Najib government.

If found guilty, 67-year-old Anwar would face prison and would be barred from running for office for five years from the day he is released from jail. In short, his political career would be over. When a criminal defendant is prosecuted, the prosecutor must prove the defendant’s guilt “Beyond a Reasonable Doubt”. If the jury – or the judge in a bench trial, in this case – has a reasonable doubt as to the defendant’s guilt, the jury or judge should pronounce the defendant not guilty.
Unfortunately, the above is not applicable in Malaysia. In this country, the opposite if true – when a criminal defendant is prosecuted, the defendant (and not prosecutor)must prove his or her owns innocence “Beyond a Reasonable Doubt”. Hence, the burden is not on prosecution to prove it (the guilt), but rather on the defendant to prove it (the innocence). A fabulous country with magnificent judiciary system, isn’t it?

Hence, Anwar’s team have presented some overwhelming “doubts”, each of which is sufficient for a “neutral and learned” bench of judges to throw the case out of window ages ago. Of course, judges in this country are primarily (not all) controlled – either for lucrative contracts worth billions of dollars after retirement or simply for promotions – so the bet is Anwar would be sent to prison, for the second time.
Here’re top-12 compelling doubts, screw-ups and (silly) mistakes, that other corrupt governments can learn not to make, should they ever try to perform similar political conspiracy on their enemies. Most importantly, do not hire script writers from Najib administration, due to obvious reason. This is the worst value for money deal you can ever get (*grin).

{ 1 } Did Not Complain Immediately After Sodomised

What would you do if you’ve been raped? Most likely complain to your immediate family members, if not a report to the police. Guess what – Saiful didn’t think of doing any of them. And he wasn’t being raped but rather sodomised. Either he was retarded or a gay or makes a living prostituting himself to, well, men. Strangely, the lower court did not think this was a big deal, or rather pretended not to take notice of such weird findings.

{ 2 } Afraid But Happy Enough For A Tea Session

Saiful, who supposedly have been sodomised by Anwar claims he was so afraid that he didn’t make police report until 2-days later. However the poor victim happily met Anwar (the culprit) 1-day after the mind-blowing “rape” incident. Seen in a photograph (which was not admittable by trial judge, for some strange reasons), which Saiful admitted to be himself, the victim does not look like someone under threat, let alone forcefully sodomised 24-hours earlier.

{ 3 } Forgotten About The Lubricant?

Saiful told the trial court that the sexual act “was vigorous and fast” and that he suffered pain. That’s absolutely very cruel of Anwar. Why couldn’t he be gentle to virgin Saiful? Who on earth wouldn’t suffer such pain when sodomised by such Hercules, right? But wait, Saiful suddenly introduced a bottle of lubricant – KY Jelly – when giving testimony during a trial, something that had never been on the prosecution’s list of exhibits. Can someone sack the script-writer?

{ 4 } Washed Underwear But Not Anus

If you think Saiful deliberately bought himself “KY Jelly” so that he can be forcefully sodomised was funny, wait till you hear this. Apparently, Saiful had not been to toilet for the next two days after being sodomised. Although he washed (which he shouldn’t) the underwear he wore on the day of the alleged sodomy, he was clever enough “not” to wash his anus in order to preserve semen samples as evidence. If only rectum could talk (*sigh*).

{ 5 } No Injury On Saiful’s Anus

If Saiful’s claim about the lubricant being used during the “sodomy” was true, then he shouldn’t feel the pain. Okay, let’s assume Saiful was indeed a virgin so much so that Anwar’s needle-sized penis would have caused outrages pain which would last 2-years. But medical evidence confirmed that there was no trauma or injury found on Saiful’s anus. Surely Saiful is not mutant Wolverine (as in X-Men) who is able to regenerate or heal his injured anus, right?

{ 6 } DNA Collected Doubtful

Government chemist Dr Seah Lay Hong concluded in her report that there were DNA of Saiful, a “Male Y” and another unidentified male contributor based on swabs taken from Saiful’s rectum. Police then deliberately (unlawfully) locked up Anwar, gave him a towel, a tooth brush and a mineral water bottle and voila, DNA profile from these 3-items matched the “Male Y” profile. Here’s the problem, there’s no evidence that Anwar used all the 3-items. Until today, nobody knows who’s the third unidentified DNA.

{ 7 } Anwar’s Super-Sperm

Doctors at the Kuala Lumpur Hospital had only swabbed Saiful for DNA just before midnight on June 28, 2008 – some 56 hours after the alleged sodomy was committed between 3pm and 4.30pm on June 26. Forensic pathologist Prof David Lawrence Wells and DNA expert Brian Leslie MacDonald had said that it was not likely that any trace of semen could be retrieved 36 hours after the alleged sexual assault took place. Unless of course, Anwar’s sperms were not ordinary sperms but super-sperms – lucky devil (*grin*).

{ 8 } Contamination In Semen Samples Storage

Instead of proper refrigeration, investigating officer stored semen samples in a steel cabinet. By the time the samples had reached the government chemist lab for testing, 96 hours had elapsed since the alleged sodomy incident took place. Even the government DNA expert agreed that samples have been severely degraded. But government chemist Dr Seah Lay Hong did not (or rather instructed not to) consider degradation of DNA in scrutinising the samples extracted from Saiful.

{ 9 } DNA Samples Tampered

Investigating office Jude Pereira had opened the sealed envelope containing separate tubes of the samples. And why did he do that? Apparently, he said he wanted to put the tubes into individual envelopes and label them. But that explanation was so lame and phoney as each of the tubes “had already been” labelled clearly by the hospital doctors. Incredibly, Court of Appeal judges declared such unauthorised action as not amounting to tampering with the samples.

{ 10 } Selective Recognition Of Reports

Anwar’s foreign pathologist Prof David Lawrence Wells and DNA expert Brian Leslie MacDonald said it was “unlikely” that any trace of semen could be retrieved 36 hours after the sodomy. However Dr Seah Lay Hong, under government’s payroll, did not think so, most likely due to the fact that Anwar’s sperms and semen are immortal (*grin*). As expected, Court of Appeal overturned the findings of the trial judge – recognising Dr Seah’s competency, never mind that the contaminated samples could have been “planted”.

{ 11 } DNA Expert Can’t Answer Without Her Notes

While it’s normal for a fight between foreign DNA experts versus local DNA experts, it certainly doesn’t help to have Malaysian DNA expert who kept saying she (Dr Seh Lay Ong) cannot answer unless she has the notes or records with her. Dr Seah also could not tell exactly the manufacturers’ standards of analyses even though they are in her possession. Heck, even she admitted (eventually) that standard guidelines were not followed.

{ 12 } Meeting With Prime Minister Najib Razak

At first, Prime Minister Najib Razak (then-Deputy Prime Minister) denied he ever met the victim Saiful. But after a photograph showed Saiful happily posed with Khairil Annas Jusuh, one of Najib Razak’s senior aide at Najib’s office, both PM Najib and Saiful admitted to the meeting.Amazingly, despite claims of being sodomised several times by Anwar, Saiful didn’t go to the police but complain to the prime minister instead. More comically was Najib’s clarification that Saiful met him to seek help about scholarship.